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Quality Time, Inc., et al v. West Bend Mutual Insurance Company

January 23, 2013


The opinion of the court was delivered by: Gerald L. Rushfelt United States Magistrate Judge


By Order Referring Motion (ECF No. 127), the District Judge referred to the undersigned Magistrate Judge a Motion to Reconsider (ECF No. 122), filed by Plaintiffs on December 27, 2012. Plaintiffs thereby seek reconsideration of the Court's order (ECF No. 120) that found Plaintiffs' Motion to Strike/Dismiss Defendant's Fraud Affirmative Defenses (ECF No. 97) moot. For the reasons set out below, the Court denies the motion.

I. Nature of the Matter Before the Court

On November 7, 2012, the Plaintiffs filed their motion to strike/dismiss Defendant's affirmative defenses of fraud asserted in its answer (ECF No. 7).*fn1 The next week the Court held the final pretrial conference in this case. On November 19, 2012, Defendant filed its response to the motion wherein it asserted among other things that the motion was untimely and should be moot upon the Court's entry of the pretrial order.*fn2 The Court entered the Pretrial Order (ECF No. 111) on November 30, 2012. On December 3, 2012, the deadline for Plaintiffs to file a reply to the November 19, 2012 response elapsed*fn3 without the filing of a reply brief.

On December 21, 2012, the Court found the motion to strike/dismiss moot because the Pretrial Order supercedes all prior pleadings and controls the subsequent course of this case. The entry of that order rendered moot the motion to strike/dismiss affirmative defenses asserted in prior pleadings.

On December 27, 2012, Plaintiffs timely moved for reconsideration.*fn4 They seek reconsideration on grounds that ¶ 9(i) of the Pretrial Order includes their motion to strike as a legal issue and ¶ 15(a)(4) of the Pretrial Order lists their motion as a pending motion.*fn5 They thus argue that their motion "was clearly preserved for decision in the Pretrial Order", the motion is not moot, and "[r]econsideration is necessary to correct clear error or prevent manifest injustice."*fn6 In their supporting memorandum, they argue that the issues raised in their motion are not moot, because the federal courts strictly enforce compliance with Fed. R. Civ. P. 8(c) and 9(b), the failure of Defendant to comply with Rule 9(b) constitutes waiver, and including the fraud defenses in the pretrial order does not change the result.*fn7

Defendant responds that the Court correctly found the motion moot, but if the Court decides to reconsider its ruling, it should find the motion untimely and/or without merit as it argued in its response to motion to strike/dismiss.*fn8 Plaintiffs have filed no reply to Defendant's response. The motion to reconsider is ripe for ruling.

II. Discussion

The Federal Rules of Civil Procedure do not provide for motions for reconsideration.*fn9

The Court, however, "has the inherent power to reconsider its interlocutory rulings" and should do so when "error is apparent."*fn10 The District of Kansas, furthermore, has promulgated a local rule, D. Kan. Rule 7.3(b), which addresses reconsideration of non-dispositive rulings. Pursuant to Rule 7.3(b), motions seeking reconsideration of a non-dispositive order must be based on "(1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." Whether to grant or deny reconsideration lies within the Court's sound discretion.*fn11 The movant has the burden to show an adequate reason to reconsider the prior order of the Court.*fn12

Plaintiffs have not carried their burden to show a basis for reconsideration. They merely assert an alleged need to correct clear error or prevent manifest injustice. The Court, however, committed no error in finding plaintiffs' prior motion moot. Plaintiffs sought to strike affirmative defenses from Defendant's answer. Striking those defenses from the answer became immaterial and moot once the Court entered the Pretrial Order, which supercedes all prior pleadings, including the answer to the amended complaint.*fn13 That Plaintiffs contend that the issues raised by its prior motion remain at issue does not change that fact. Nor does the inclusion of the sufficiency of the affirmative defense of misrepresentation and fraud as a legal issue in the Pretrial Order alter the Court's finding that the motion to strike/dismiss is moot. Listing the motion as pending in the Pretrial Order likewise provides no basis for altering the finding that the listed motion is moot. The Court correctly deemed the motion moot.

Plaintiffs, furthermore, identify no manifest injustice that will result should the Court deny their motion for reconsideration. For that reason alone, the Court finds that Plaintiffs have failed to carry their burden to show manifest injustice which warrants reconsideration. Plaintiffs, moreover, cannot reasonably argue that manifest injustice will result should the Court deny reconsideration. As argued by Defendant, Plaintiffs did not timely file their motion to strike/dismiss.*fn14 Had the Court not found the motion moot, it would have denied it on that basis. The untimeliness of the underlying motion precludes any finding of manifest injustice upon the instant motion to reconsider.

For the foregoing reasons, the Court denies the Motion to Reconsider (ECF No. 122) filed by ...

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